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The recent introduction of requirements for policies and
procedures relating to harassment and workplace violence in
Ontario's Occupational Health and Safety Act ("OHSA")
has increased the regulatory workload on employers. However, a
recent decision by the Ontario Labour Relations Board (the
"Board") appears to limit to some extent the scope of an
employer's added responsibilities.
In K. Annette Harper v Ludlow Technical Products Canada Ltd., an
employee alleged that she was harassed at her workplace by
co-workers who had circulated a petition regarding her activities
in relation to a product safety issue. She complained to her
employer, and then notified the Board that her employer had
allegedly failed to investigate her concerns or comply with company
procedure for the investigation of harassment complaints. The
employee also claimed that, after filing a complaint with the
Board, her employer had refused to appropriately process her claims
for short-term disability or WSIB benefits in alleged violation of
section 50 of the OHSA, which prohibits reprisals against an
applicant by his or her employer.
The employer requested that the application be dismissed on the
basis that it failed to raise a prima facie violation of section 50
of the OHSA. Under Rule 39.1 of the Board's Rules of Procedure,
an application may be dismissed by the Board where the facts do not
support the remedy or order requested, even if all the facts as
alleged by the claimant are true and provable. The employer
contended that because neither it nor any party acting on its
behalf was
responsible for the alleged harassment of the applicant, and
because the alleged harassment was claimed to be related to the
applicant's product safety concerns (and complaints regarding
product safety are not governed by the OHSA), the application
should be dismissed. Further, the employer submitted that the
application could not succeed, because the employer had prepared
and posted a workplace harassment policy, developed and maintained
a program to implement such policy, and provided workers with
instruction on such policy, which are the only obligations of an
employer under the OHSA with respect to workplace harassment, and
there was no dispute that the employer had complied with these
obligations.
Following an earlier case before the Board, Investia Financial
Services Inc., the Vice-Chair noted that under the OHSA, the
employer has specific obligations and duties related to harassment
and workplace violence, including an assessment of the risks of
workplace violence; the establishment of a program to implement the
employer's policy countering workplace harassment; and
providing information and instruction to employees regarding the
employer's workplace harassment policy and program.
However, there is no obligation on the part of the employer, and
no jurisdiction provided to the Board, to ensure that the workplace
is actually free of harassment. Similarly, the Board has no
jurisdiction to ensure that a workplace harassment policy
instituted by an employer is effective. Further, section 50 does
not protect employees from reprisal in respect of a complaint about
the effectiveness of the policy, where such a policy already
exists. As a result, the Board dismissed the case as against the
employer.
No employer wants to see harassment in its workplace. However,
provided that policies and procedures are in place to counter
workplace violence and harassment, the employer has complied with
its obligations under the OHSA. The Board does not have
jurisdiction to address complaints of harassment under the
OHSA.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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